Karnataka High Court
Sri Gangadharaiah S/O Borappa vs The State Of Karnataka on 21 June, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.1921 OF 2005
BETWEEN :
1. Sri. Gangadharaiah,
son of Borappa,
Aged 40 years,
2. Sri. Palakshaiah,
Son of Basavaraju,
Aged 28 years,
All are residents of Nittur,
Railway Station,
Gubbi Taluk. .... PETITIONERS
(By Shri. Anjaneya, Advocate)
AND:
The State of Karnataka by
Gubbi Police Station,
Tumkur District,
represented by the learned
State Public Prosecutor,
2
High Court Building,
Bangalore - 560 001. ...RESPONDENT
(By Shri. P.Karunakara, High Court Government Pleader)
******
This Criminal Revision Petition filed under Section 397 read
with 401 Criminal Procedure Code, 1973 by the advocate for the
petitioners praying that this Hon'ble court may be pleased to set aside
the order dated 29.11.2003 in C.C.No.250/1999 on the file of the Civil
Judge (Jr.Dn.) and Judicial Magistrate First Class, Gubbi and also in
Criminal Appeal No.66/2003 dated 6.10.2005 on the file of the
Presiding Officer, Fast Track Court-III, Tumkur District thereby set
aside the conviction and sentence.
This Criminal Revision Petition is coming on for Hearing, this
day, the court made the following:
ORDER
Heard the learned counsel for the petitioners and the learned Government Pleader. The petitioners were the accused before the court below in the following background:
On 9-12-1998 about 9.30 p.m. near Nittur Railway Station, Gubbi Taluk, Tumkur District, Accused No.1 Gangadharaiah who was 3 running a tea stall, along with Accused Nos.2 and 3, being under the impression that the complainant and his family were instrumental in having published an article in a local newspaper alleging that alcoholic drinks were being sold in their tea stall without a licence, they had abused the complainant and his family in vulgar language and as a result of which an altercation had broken out between the accused and the complainant and his family members. It was further alleged that Accused No.1 had assaulted Shivanna with a sickle, whereas Accused No.2 had assaulted Nataraju with a coconut shaft (sic). The third accused Shivakumara had kicked and beaten Gangamma, as a result of which Gangamma had fallen on a stone and sustained a bleeding injury. This was witnessed by one other person by the same name as Gangadharaiah, S/o. Channabasavaiah and Sadashivaiah, S/o. Guruchannabasavaiah. They had intervened and stopped further fighting between the two groups. Shivanna's wife one Jayamma had filed a First Information Report before the jurisdictional 4 Gubbi Police Station at 1.30 a.m. on the next day, namely on 10.12.1998, and a case was registered in this regard. The sickle and shaft which were used in the alleged incident were also seized and thereafter, a charge-sheet having been filed, further proceedings were initiated. The accused had denied the allegations and claimed to have been tried. The prosecution therefore examined PWs 1 to 8 and marked several exhibits including material objects, on the basis of which the Trial Court had framed the following points for consideration:
"1. Whether prosecution proves beyond all reasonable doubt that on 9/12/1998 at about 9.30 p.m near Nittur Railway Station in front of the house of Jayamma A-1/ Gangadharaiah, voluntarily inflicted grievous injury on the head of Shivanna with an axe and thereby committed an offence punishable under Section 326 of IPC?5
2. Whether prosecution proves beyond all reasonable doubt that on the above said date, time and place A-2 / Palaksha with a common intention voluntarily caused hurt to Nataraj and thereby committed an offence punishable under Section 324 read with Section 34 of I.P.C.?
3. Whether prosecution proves beyond all reasonable doubt that on the above said date, time and place A-3 / Shivakumar with a common intention voluntarily caused hurt to Smt. Gangamma by kicking and beating her and thereby committed an offence punishable under Section 323 read with Section 34 of I.P.C.?
4. What Order?"
2. The Trial Court had held Point Nos.1 to 3 in the affirmative and had sentenced Accused No.1 to undergo simple imprisonment for two years and to pay a fine of Rs.1,000/-; Accused No.2 was to undergo simple imprisonment for three months and to pay a fine of 6 Rs.250/- and Accused No.3 was sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.100/-. This having been carried in appeal, the appeal was dismissed and the sentence of conviction affirmed by the Appellate Court. It is that which is under challenge in the present petition. However, it is noticed that the present petition is filed only by Accused Nos.1 and 2 and Accused No.3 has not sought to challenge the judgment of the court below.
3. The learned counsel for the petitioners would submit that first and foremost, the courts below have completely overlooked the circumstance that the alleged incident was as a result of extreme provocation and instantaneous altercation having erupted between the complainants and the accused. It was in that background that there was a case and counter case. Though it is indicated that the case and counter case were tried together, there is no indication in the record that this circumstance has been kept in view in addressing the criminal 7 intention, if at all, being present in the alleged assault having taken place. The learned counsel would submit that merely on account of the complainant and others having suffered injuries as a result of the incident, it is made out that the present petitioners were the assailants who had attacked the complainants and others with pre-meditation, armed with deadly weapons. It is in this circumstance that an offence punishable under Section 326 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC' for brevity), has been invoked as against the present petitioners. The actual fact that the Accused No.1 was running a tea stall and was carrying on a legitimate business and there was a slur campaign against the petitioner No.1 and his tea stall to the effect that he was unauthorisedly selling alcohol in the tea stall, had provoked him to berate the persons instrumental in having published the incident in the local newspaper, and the complainant and others who believed that he was using foul language against them, had retaliated and sought to pick up a quarrel with the petitioner. It is 8 in that background that there was an altercation, where the complainant and others were equally violent in their attack against the petitioners, and it is the unfortunate circumstance that the complainant and others had been injured and the petitioners have been projected as the assailants and the complainants and others as victims. While it was also a fact that there was a counter case, where the present petitioners had claimed that they were attacked and the fact that the accused therein, namely the very complainant and others having been acquitted on a benefit of doubt, by the same token of reasoning, the petitioners also should have been extended the benefit of doubt. It is only the circumstance that there were injuries sustained by the complainant and others, which has prompted the courts below to hold that the present petitioners were guilty of having committed offences punishable under Section 324 and Section 326 read with Section 34 of the IPC. The learned counsel would therefore submit that the court below has taken note of the inconsistencies in the evidence of the eye- 9 witnesses and notwithstanding the same, has held that there were other circumstances which were not inconsistent and therefore, has held that the prosecution had proved its case beyond all reasonable doubt. The learned counsel would in this regard, take the court through the record and the findings of the courts below to demonstrate that the several inconsistencies and discrepancies have been overlooked, to the detriment and prejudice of the petitioners, which warrants interference by this Court in revision, though the petitioners were not in appeal before this Court. The learned counsel would submit that the incident admittedly having taken place at 9.30 p.m, the identification of the accused was not a certainty. Even if the petitioners could be said to have been involved in the incident, the overt acts attributed to each of the petitioners, was not capable of being indicated with any certainty by eye-witnesses, having regard to the poor light at that time of the night and the alleged injuries being characterized as grievous injuries, was also not justified and insofar as 10 the evidence of witnesses are concerned, they were all close relatives and interested persons of the complainant. While the Appellate Court has referred to the counter case, has not addressed the significance and the presumption that would arise as to there being no pre-meditated criminal intention on the part of the petitioners and that, it was under
extreme provocation that an altercation had erupted between the complainant and others, and the present petitioners. Insofar as the inconsistency in the testimony of PWs 1 to 4, the courts below have, without any justification, held that the evidence of PW-5 and PW-7, would make up for the said inconsistencies in the evidence of PWs 1 to 4. This was certainly denying the benefit of doubt to which the petitioners were entitled, as was the reasoning afforded by the courts below insofar as the counter case was concerned. It was wholly unfair for the petitioners to have denied the benefit of doubt insofar as the inconsistency in the evidence of PWs 1 to 4 are concerned. Notwithstanding the conviction of accused No.1, the learned counsel 11 would point out that insofar as Accused Nos.2 and 3 are concerned, the courts have opined that the seriousness of the allegations against the said accused were watered down and therefore, thought it fit to impose nominal punishment which could have even been reduced to fine even if the allegations were found to be established. Insofar as the Accused No.1 is concerned, the courts below have taken a serious view only on account of the injuries suffered by the complainant and others having been characterized as grievous injuries. The learned counsel would submit that since it is evident on record that the incident has occurred and the injuries have occasioned on account of a sudden eruption of violence between the complainants and others and the accused, the offence could at best be punishable under Section 335 of the IPC and not under Section 326 IPC, as the same has not been caused voluntarily with pre-meditation and with criminal intent, but was out of extreme provocation and the animosity being mutual between the complainants and the accused, and since the petitioners 12 were attacked with equal vengeance by the complainant and others, it cannot be said that it was clearly an offence punishable under Section 326 IPC and therefore, pleads for the conviction being tempered with consideration, in view of the facts and circumstances. If the petitioners cannot be acquitted, at least to impose a lesser punishment of fine and therefore, submits that the petition be allowed.
4. On the other hand, the learned Government Pleader would vehemently oppose the present petition and would submit that insofar as the contention that having regard to the time of the incident, there was poor light and therefore, the identification and the narration of the sequence of events could not be readily accepted through the evidence of eye-witness, is not a contention that is tenable, for the reason that the complainant and others and the petitioners were neighbours and they were very familiar with each other. So also, the eye-witnesses also not being strangers, were in a position to speak about the overt acts of each of the accused and this has been addressed by both the 13 courts below. Insofar as the claim that the injuries caused are not of a grievous nature and hence, the offence being punishable under Section 326 was not tenable, is again an incorrect statement, having regard to the nature of the injuries. In is on record that the injury found on Shivanna and the evidence of the Medical Practitioner who had administered first aid, indicates that he had lost about 1.5 litres of blood and was unconscious at the time of treatment. As such, the claim that the injury having been caused by sickle which went 3 inches deep on his skull was not grievous, is wholly untenable. Further the so-called inconsistencies that are sought to be pointed out with reference to the evidence of PWs 1 to 4 and PW-5 and PW-7, have been addressed closely by the courts below and findings arrived at are findings of fact, which have been substantiated with good and sufficient reasons. Therefore, the question of interference by this Court in revision by appreciation of evidence, is not contemplated under the scope of revision and therefore, would submit that it would 14 result in a miscarriage of justice if the petitioners who are found guilty of having committed offences involving grievous injuries are left scot- free. The claim that there was no pre-meditation and no criminal intent, is incorrect. The allegation was that the petitioners were enraged on account of an article being published in the local newspaper which was being attributed to the accused and therefore, there was certainly pre-meditation in the attack by the present petitioners, and the claim by the petitioners that the incident was on account of sudden provocation, is not so and hence, would submit that the punishment imposed being just and reasonable, there is no warrant for interference by this Court, on the footing that the punishment is disproportionate to the offences alleged and hence, would seek dismissal of the petition.
5. On the above contentions and in the facts of the case, since the Accused No.3 is not before this Court and since there is no challenge to the conviction insofar as the said accused is concerned, 15 the punishment imposed thereunder cannot be interfered with. Insofar as the present petitioners are concerned, the first circumstance that there was a case and counter case, would give a different colour to the incident. This aspect of the matter has not been addressed by either of the courts below. Though it is claimed that the trial was conducted in both the case and counter case simultaneously, there was no indication as to the manner in which the offence against the complainant and others has been dealt with by the courts below. It is only indicated that they have been acquitted on a benefit of doubt. If that were so, the same token of reasoning would apply to the present petitioners as well. Merely because of the fact that the complainant and others had been injured, the petitioners have been projected as assailants and the complainant and others as the victims, which has resulted in the courts below holding that the charges against the accused being proved beyond all reasonable doubt. This would stand considerably watered down if the circumstance that there was a case and counter case is 16 kept in view.
Viewed in that light of the matter, the fact that there was an allegation of the petitioners vending alcohol without a licence in their tea stall, having been published in the newspapers and the present petitioners acting under the suspicion that it was the handwork of the complainant and others having broached them and an altercation having broken out between the complainants and the petitioners, can certainly be characterized as an incident that has been provoked without pre-meditation and without any criminal intention. It cannot be attributed to emotions having run amok that has resulted in the complainant and others being injured in the incident. Whether the petitioners themselves claim to have been injured and whether there was any evidence in this regard, is not forthcoming, since the determination of those allegations in the counter case is not discussed in the course of the judgments, by both the courts below. Therefore, having regard to the inconsistencies that were again pointed out with 17 reference to the evidence of PWs 1 to 4, albeit the evidence of PWs 5 and 7, according to the courts below, applying the lacuna if any and making good in the inconsistency in the PWs 1 to 4, would also weigh in favour of the present petitioners' case that they have been treated unfairly and with a partisan attitude by both the courts below. Therefore, even assuming that there was an incident whereby the complainant and others were injured on account of being attacked by the present petitioners, and the learned counsel for the petitioners now claiming that having presently reconciled their differences and if not for the fact that the offence punishable under Section 326, is a non- compoundable offence, the parties would have come before the court seeking to compound the matter, is yet another circumstance, which would warrant interference by this court. The fact that the offence punishable under Section 326 having been invoked, has resulted in the courts convicting the Accused No.1 with simple imprisonment for two years along with fine, can be dealt with while addressing the 18 circumstances that any such injuries caused were out of extreme provocation and on the spur of the moment, which has not been caused with pre-meditation and criminal intention, and therefore, would be an offence punishable under Section 335 IPC, it can be stated in favour of the accused. Therefore, while dealing with the offence punishable under Section 326 IPC as being one under Section 335 IPC, this Court would opine that the punishment imposed against the present petitioners could be modified, while eschewing the conviction of imprisonment, a punishment of payment of fine in a substantial amount could be imposed. This would serve two purposes. Firstly, it would bring home to the accused the need for more restraint civil conduct and to prevent them from involving themselves in such further instances and would bring about harmony between the complainants and the accused, while also ensuring that out of the fine amount, a substantial amount could be paid as compensation for the injuries suffered by the complainant and others. This would meet the 19 ends of justice while also, giving a quietus to the animosity between the parties.
Therefore, the petition is allowed in part. Since the conviction insofar as Accused No.3 is concerned cannot be interfered with in the light of the fact that there is no challenge made by the petitioner No.3, the punishment imposed on these petitioners is modified to hold that they shall jointly pay a fine of Rs.30,000/-, out of which a sum of Rs.13,000/- each shall be paid to Shivanna PW-2 and Gangamma PW- 3 and a sum of Rs.4,000/- shall be paid to PW-4 Nataraju, out of such fine amount. This does not include the fine amount already paid as imposed by the courts below.
Sd/-
JUDGE KS